---

Proceedings of the Standing Senate Committee on
Human Rights

Issue 2 - Evidence, June 4, 2001

---

OTTAWA, Monday, June 4, 2001

The Standing Senate Committee on Human Rights met this day at 1:10 p.m. to examine issues relating to human rights, and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations.

Senator A. Raynell Andreychuk (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I wish to welcome you to the first meeting of the Standing Senate Committee on Human Rights where we will be hearing evidence in regard to our first inquiry.

I am pleased that Professor Anne Bayefsky was able to come today. Later this afternoon we will hear from Mr. Alex Neve, the Secretary-General of Amnesty International Canada.

We had a bit of difficulty obtaining witnesses. Although witnesses were interested in the topic and wished to appear, it seemed that June was not a good month for professors and others. They are all eager and keen to appear when we reconvene. The witnesses who have been suggested are on the list and we will follow up on them. If we can continue to receive names, it will be helpful.

I welcome Ms Bayefsky and ask her to make an opening statement and then we will go to questions.

We are interested in acquainting ourselves with what exists in the way of machinery in the federal and provincial government in Canada to assist in the cause of human rights internationally and nationally, particularly with emphasis on the role that parliamentarians can play or have played with respect to human rights.

We are look forward to being informed and to receiving suggestions as to what areas we may study or what gaps we might examine with a view to making suggestions for alleviating difficulties.

Professor Anne Bayefsky, Department of Political Science, York University: Honourable senators, I am privileged to be asked to be your first witness before this new committee. It is wonderful that there is now a Human Rights Committee in the Senate. You have exciting prospects in defining the work of this committee. You can play an important role in Canada's adherence to human rights law and practice. You can assist in facilitating Canada's leadership role at an international level in terms of both compliance and as a model for how one can bring together international law and domestic law to work for the benefit of Canadians. You can also provide direction in confirming that there is a universal standard of human rights that ought to be equally applied around the world. The potential for this committee is great. If there is anything that I can do to facilitate your work, now or in the future, I would be happy to do so. I hope this is our first conversation and if you should like to have others in the future, do not hesitate to get back to me.

I have been working for the last two years on a review of the legal system of the UN in collaboration with the UN High Commissioner for Human Rights, Mary Robinson. About two months ago I presented her with the outcome of that report. All 900 pages are on the Web. I understand that much of it has been downloaded for you. The report is shorter and the statistics are long, but they do allow you to survey Canada's record with respect to the UN's human rights system. I will draw your attention in a number of places to that specifically.

As you know, Canada has been an active participant in the international human rights system. We have ratified all of the six major UN human rights treaties. We participate to a large extent in the international petition system, or the system that allows individuals to complain of violations of human rights to the UN treaty. We sponsor the main resolutions on the effective functioning of the UN human rights treaty system both at the General Assembly and the Commission on Human Rights on an annual or biannual basis. Canadians have been on many of the human rights treaties bodies, beginning with our good friend and former colleague, Walter Tarnopolsky.

We are familiar with and supportive of the international system. That does not mean to say that we have a record of compliance that meets all of the standards that an objective observer would have insisted upon. That is where we might talk about the potential role of the Senate.

Let me give you some brief statistics on Canada's role and participation in the human rights field. First, the international system of human rights - I am talking about the global system, the UN system, not the inter-American system in which we also participate through the OAS - has two sets of compliance strategies. One is to write reports on Canada's adherence to its international legal obligations in terms of the six major human rights treaties: civil and political rights, economic, social and cultural rights, torture, children, women's discrimination and racial discrimination. Six treaty bodies review those six treaties. These are monitoring bodies that meet regularly throughout the year on a part-time basis. They monitor reports from state parties, of which Canada is one, for all six of those treaties. The treaty bodies consider Canada's degree of compliance with those treaty obligations. Canada is forced or required by the treaties themselves, which we voluntarily ratified, to write reports.

The second means for implementing international human rights obligations is through the individual complaint system. We participate in the complaint system under the International Covenant on Civil and Political Rights by permitting complaints to the Human Rights Committee and to the Committee Against Torture, or CAT. We do not participate in the racial discrimination convention's much more limited system on complaints known as CERD, or the Committee on the Elimination of Racial Discrimination. We have not yet ratified the individual complaint system under the CEDAW convention, the Committee on the Elimination of Discrimination against Women. That is under consideration and that is an issue that this committee may wish to consider in the future. Canada's leadership role in allowing women to exercise rights of complaint to an international body could be of considerable importance in defining the early operations of that committee in a way that is successful.

We currently have Canadians on the Human Rights Committee, Maxwell Yalden, and on the Committee Against Torture, Peter Burns from UBC. Over the years, we have had distinguished Canadians on many of the committees. We do not have as many Canadians as we should have, and this is another issue that you might consider.

We have no women on any of the treaty bodies. We agree with the words of the annual resolutions of the General Assembly that encourage state parties to appoint women to membership of the treaty bodies. However, we do not appoint any women.

Those two monitoring processes result, first, in reports that we, as a country, write and present; and, second, in the presentation of individual complaints that have results and that we are required to observe, when those results are made known to us.

Very frequently, Canadian officials are required to go before these international committees to discuss Canada's human rights record. We have ratified six treaties. Those reports are due, on average, between every two and five years. The committee on racial discrimination requires reports every two years. Canada ends up, in practice, having reports considered once every 1.2 years.

Until approximately one year ago, Canada had 23 reports considered by these committees. We often have one report considered per year, but sometimes we might have two or three reports in a year. The reason for this is because the committees do not coordinate the number of times a country appears before them in a given year. This means that Canadian officials are frequently presenting reports on Canada's human rights record to the United Nations bodies.

It is a significant problem that there are seldom any news reports following the presentations. Sometimes there are lobby groups. For example, there may be NGOs who are particularly interested in a special issue.

The high profile Committee on Economic, Social and Cultural Rights has been the subject of a lot of focus lately. There were groups in Geneva that were concerned about poverty and homelessness. The negative comments of the committee with respect to Canada's record received a fair amount of publicity at that time. That is also true with respect to some of the issues surrounding the Committee Against Torture, which is concerned with the issue of people being sent back to countries where they might face torture. Some committees are concerned with issues related to the rights of the child and the separation of families.

In general, the work of the committees is poorly followed. For the last 15 years that I have been present at these committees, there has been very poor Canadian attendance. Very often, a few other Canadians and myself sit, listen and observe the results of the work of these committees. The Department of Canadian Heritage, which has a small, dedicated staff, records and publishes those results. One can phone the department or visit the Web site to obtain copies of those reports and treaty material. It certainly is available, if you know who to call and how to make contact. Otherwise, the outreach is limited.

Another issue that this committee should examine seriously is the possibility of a Web site being created to facilitate Canadians' understanding of Canada's international obligations and what those obligations entail.

There have been selective media blitzes. In 1999 on the anniversary of the Convention on the Rights of the Child Ontario school children were given lessons on the convention. However, the teaching has been limited.

It is particularly limited in respect to how to voice a complaint against Canada. We have the legal right to make use of the committee's complaint mechanisms. Yet, by and large, Canadians have no idea how to make use of the individual complaint processes.

In fact, law professors from across the country, who are associated with some of the treaty bodies and the relevant mechanisms, are contacted and asked if they can help in filing a complaint case. We like to provide people with information, and I certainly do my best to write back and tell people how and where to file a case. However, that is not how Canadians should become familiar with their international rights and remedies.

Certainly, the absence of an educative, facilitative mechanism is a serious lacuna in the Canadian law and policy institutional framework.

In respect to individual cases, I will tell you about Canada's record. There have been 986 cases in the last 25 years of the operations of the Human Rights Committee. That is the figure for the full history of the Human Rights Committee, which is concerned with every kind of civil and political right. Those rights include the right to vote, to freedom of speech, to a free trial and to non-discrimination. Of those 968 total cases, 98 came from Canada. Approximately 100 states have ratified this provision, and 10 per cent of the cases come from Canada. We lead the record, except for Jamaica, which has withdrawn from the system. Jamaican cases concerned the death penalty. Jamaica withdrew because they wanted the death penalty and the committee operated in a way that defeated its ability to use it.

Of the current membership in the human rights complaint system of the Covenant on Civil and Political Rights, Canadians register more complaints than anyone else.

The reaction from the government may be to comment that this is terrible; the UN must have it all wrong; the system is biased; they do not understand us; there is prejudice; or that we are dealt with poorly because we are a democratic country. My view, which I put very strongly in my report to the High Commissioner, is that attitude is absolutely the wrong attitude to take.

Ninety-eight registered cases in 25 years is a pittance. We are grown up and we can cope with that. Of those 98 cases, more than one half were thrown out because they were inadmissible; they did not meet the minimum criteria for going further. There were 18 final decisions adopted, and one half of them revealed complaints. Thus, nine decisions in 25 years found Canada falling short in terms of its international obligations. This is not a statistic with which we cannot cope. We should work to find a remedy. We are not justified in feeling hard done by.

In respect of the Committee Against Torture, the statistics show that 18 per cent, or one-fifth of all the cases before the committee relate to Canada. That is not due to allegations that we are conducting torture here, but rather due to the potential that we will deport people to countries where they face the prospect of torture.

Again, most of the cases have been thrown out. There are three final views of the committee on Canada. Only one ever found a violation on that issue in the 15-year history of the committee.

One of the issues for you to consider is to what extent there is compliance with these outcomes. That is where there is not a serious system to monitor the follow-up. What happens after Canada is found not to be in compliance? Who monitors that? At the moment, it is monitored only by the federal-provincial Continuing Committee on Human Rights which, as I am sure you are aware, meets behind closed doors. It does not hear from, as such a body has the potential to do, people from different walks of life, expertise and interests.

This has reached a crisis point, without exaggeration. It reached a crisis point in a case with which I am specifically familiar because I was counsel on the case. I took the case of Waldman v. Canada to the Human Rights Committee. That was a case that challenged the Ontario law which denies equal funding for non-Catholic and Catholic schools, alleging that it is a violation of the equality provisions of the Covenant on Civil and Political Rights. The committee found there was indeed a violation of Canada's international obligations under the covenant.

This is particularly important for the committee because the federal response from the Minister of Justice, the Minister of Foreign Affairs and the Prime Minister to the committee was that this was an issue of provincial jurisdiction and that the only federal obligation was to encourage the provincial government to abide by its treaty commitments.

This ruling has thrown our international reputation and our ability to take a leadership role into serious doubt. I think the Senate has a uniquely constructive role to play in this area in terms of federal-provincial relations and the input of the provinces into the system. Canada has, of course, ratified all of these treaties only with the specific approval and consent of the provinces. If the provinces are able to say that they have no obligation to adhere to those international obligations and the federal government is able to say that it has no obligation to do more than encourage them, what does our ratification mean? This applies not only to human rights law but to ratification by Canada of any treaty whatsoever.

What can we do about that? What could the role of this committee be in encouraging compliance? What more can be done at the federal level and what are our responsibilities? That is a very important issue.

In summary, in my report to the High Commissioner I highlighted a number of recommendations. There is a short recommendation section. It details specifically what state parties can do, but on page 176, in Recommendation No. 162, I deal very specifically with a national implementation strategy for international human rights obligations. It contains a step-by-step set of proposals ranging from reviewing existing legislation for compliance with international law, to amending inconsistent practices, to comparing potential law that comes before you with international obligations, to creating a national forum to hear from people on compliance, to ways in which the Senate may, for example, develop an institutional structure which facilitates dialogue between civil society and government on compliance with Canada's international obligations. It is quite specific. There are a number of other specific recommendations that you can deal with, but I am sure you want to ask me about specific issues so I will leave it at that.

The Chairman: You have flagged some of the points in which we are interested. As you indicated, we may want to have you back at another time. Thank you for being available.

Senator Wilson: I am from Ontario. When the Waldman case came up, the Premier of Ontario said that since the UN report had said that Canada is the best country in the world, he assumed that included the education system. That was that and there was no more discussion.

What strategies do you suggest for breaking that provincial-federal dichotomy? As we all know, when they report to Geneva, the feds blame the province and the province blames the feds.

Ms Bayefsky: The statement that Canada is the best country in the world comes from the UN Human Development Report. I was on the advisory committee to that 2000 report on human rights. I do not know whether you have seen the report itself, but the ranking has to do with Canada's record on school enrolments, the education system and certain social safety nets, all of which are very important things. However, it does not pretend to talk about Canada's general human rights record on a whole series of issues. Every time we hear the UN say that we are the best country in the world, we ought to ensure that we know the context of that remark and understand that it does not mean we have no room for improvement.

The Ontario government currently has an initiative that tries to respond in part to the criticism of the UN committee and extends public funding to denominational schools other than Catholic schools. That is being met by stiff resistance from very surprising quarters, from people who, on one hand, supposedly understand human rights and who, on the other, have very little understanding of Canada's international human rights obligations.

You raise the issue of the status of these obligations and their status here in Canada. I know that Senator Beaudoin is an expert on this subject in terms of constitutional law. On the one hand, we have international obligations; on the other hand, unless they are implemented in Canadian law they cannot be enforced directly through Canadian courts. However, that does not mean that there are no internal obligations.

The Supreme Court, in the most important case on the subject, Davidson v. Slaight Communications Inc., a watershed case, has said that Canadian courts, unless faced with a straight conflict, should presume that Canadian laws and policies are in compliance with international law and interpret them accordingly.

The first thing is to point out to the provinces, through a dialogue with attorneys general and legal counterparts, that it is not the case that international laws are irrelevant to Canadian legal and policy development. That is the first thing. The second thing is to be sure to remind provinces that they were part and parcel of any ratification. It was not that obligations were entered into behind the provinces' backs.

Another issue for your committee is how to ratify treaties. Where are the hearings? We do not have any. It is an executive act. In contrast with the United States, Senate approval is not required for the ratification of treaties. Of course, that approval comes with a price in the United States whereby the treaties do form part of American law, having gone through a very democratic process in terms of ratification.

We have done the opposite. We ratify by the executive and, as a result, it does not take effect without implementation.

This committee could open up the system and allow a dialogue in advance of treaty ratification, making the system more transparent. For example, in the absence of any clear direction in terms of ratifying the Optional Protocol to the CEDAW Convention, it would be possible to have hearings on whether Canada should ratify the women's discrimination optional protocol.

Having said that, provinces are part and parcel of the ratification process. They were all asked and they gave their permission. That carries with it certain kinds of obligations.

The third matter is to understand the social charter in terms of a dialogue and a constructive relationship between the provinces and the federal government with regard to international obligations and human rights. After all, the social charter stipulates at the outset the equality of Canadians. What does that mean? It seems to me it is an opportunity. It is an opening phrase that allows for our international rights and human rights obligations to inform our understanding of federal-provincial relations. Where the provinces deny or refuse to take seriously our international obligations - as Ontario originally did and is not doing now - and invoke the social charter as a barrier to prevent federal oversight of such compliance, we could engage the provinces in a dialogue to remind them that the social charter itself, in its opening remarks, gives the federal government authority to use the spending power, if necessary, to ensure Canadian compliance. At the end of the day, Canada's international reputation in terms of human rights has to take priority.

I do not know what you think about using the peace, order and good government power to do that. I do not think it is necessary, but creative use of the spending power to provide remedies, where that can provide a solution, would not be undue in the face of direct provincial intransigence in the future.

Senator Wilson: Briefly, I think the committee is well aware of the regular reiteration that Canada is the best country in the world in which to live and we know that depends on which factors are in the report. I would have to say that the recent decision to fund private schools in Ontario may be an attempt to meet UN obligations, but some believe it may have another agenda. We will not go into that now, but I thought I would make that point.

If it is useful to open up a dialogue with the provinces before ratification, would you say it might be useful for this committee to have interface with the MPPs, for example, in a particular province where there is a roadblock?

Ms Bayefsky: It is always a good idea to talk in this context. In particular, insofar as the objections are coming from Justice officials or attorneys general in the provinces, who believe there is a strong legal block to meeting treaty obligations - for example, human rights obligations - then it would be helpful to have assistance from this committee in terms of the federal understanding of what those obligations are. This would be especially useful in an open context that permitted a dialogue not only with provincial MPPs but also with non-governmental organizations or academics who perhaps have contrary reviews to their local governmental officials.

Senator Watt: I will try to zero in on Aboriginal people, in particular, those who live in the Arctic. I noticed you have been involved in various matters that are of interest to Aboriginal peoples. You worked on behalf of the committee of women and also native women on constitutional issues. You have also been involved, I believe, as counsel intervenor on the Quebec secession reference before the Supreme Court of Canada.

Ms Bayefsky: Yes.

Senator Watt: I am not sure whether the questions that I put to you will require further examination. It may require more time for you to give us a full and complete picture. Do not hesitate to let this committee know if you require more time to answer.

Aboriginal people are here in this country and are here to stay, but we have many problems in terms of seeing eye to eye and working together for the benefit of the country. This is related to the fact that Aboriginal people in this country, from the time they encountered people from other parts of the world, did not see eye to eye on many issues from the beginning. The cultural backgrounds are not similar. They both have the right to live and the right to life under the Constitution.

By saying that, we, as Aboriginal people, seem to lack equipment or machinery. By that, I mean machinery that is acceptable and recognizable by the Government of Canada or the provinces of Quebec or Ontario, or any province, for that matter. At times, people may think perhaps this is because of discrimination. I am not sure whether there is clearly discrimination in this matter. I think it is a question that Aboriginals are not equipped economically to compete, to be listened to and heard when they have an issue to deal with. I am sure in your dealings you have come across a similar concern even at the United Nations level. I know for a fact that at the international level there is an NGO that represents the three regions of Alaska, Greenland and Canada and that there is now a fourth one, Russia. They are newcomers to Arctic Circle involvement of the Aboriginal peoples.

Where do they fit into those six treaties that you mentioned that have been ratified? You also mentioned the individuals concerned. How do we challenge this or how do those people in this international community channel their concerns in order to have them heard?

Is there something wrong? Should this committee look at something to see how we can help correct what is at the national and international level? The two play one off against the other from time to time, and they also play to the benefit of each other from time to time. Could you provide a broad picture in that area?

Ms Bayefsky: I will deal with your question from the international domestic interface perspective. A number of concrete things can be done. First, Canadian Rights reports to these committees. Many of the reports deal in some measure with the treatment of Aboriginal Canadians. This treatment comes up in a number of different contexts. It is found in Article 27 of the Covenant on Civil and Political Rights that has to do with minorities and their minority treatments and heritage. It is also found in non-discrimination clauses of the CEDAW regarding the treatment of women. The issue of the treatment of Aboriginal children is covered in the Convention on the Rights of the Child. These reports are produced by government officials. No one reviews them from an external or a Parliamentary perspective before they are submitted to the UN bodies. They are a statement on Canada's compliance.

There are a number of possible solutions. One solution is to have a committee engage in dialogue during the drafting of the Canadian reports and address Aboriginal issues. The purpose of the dialogue would be to encourage the government to include in the report an analysis of our compliance with international obligations and a statement of facts that is both accurate and directed at future constructive initiatives.

That dialogue could take place during the drafting stages. There are examples of that in England where the government engaged in an open process of consultation concerning its compliance before producing its state report.

Some people might think it is a government draft that may not be a complete account because the government might not want to expose itself by writing a highly negative, self-critical report in its statement to an international body. However, I am not convinced it could not be helpful to be more honest in terms of self-analysis. If that were true then, after the report is written, there ought to be a review in terms of the results of the committee's assessment. For example, these committees have had specific criticisms to make of Canada in the context of Aboriginal peoples. Those remarks could be taken up by a parliamentary committee concerning the substance of the report, the criticisms made at the international level and Canada's response to them. There is no independent body to deal with the response at the present time. The only body that deals with it is the federal-provincial Continuing Committee on Human Rights, and it meets behind closed doors.

In the context of state reporting, something specific can be done to monitor the reports and monitor compliance with the comments of the committees. These reports have dealt very specifically with Aboriginal peoples.

The second issue is about monitoring the results of complaints and facilitating complaints. There have been cases with respect to Aboriginal peoples and the Human Rights Committee. For example, there is the Ominyak case. The committee is still struggling with follow-up procedures. For instance, Canada gave a response to a finding by the committee that there was a violation and suggested that certain issues with respect to this case should be improved. The committee never published the response. It is very difficult to get a response from the Government of Canada. You can serve an important role in terms of opening this issue to the light of day. You have the opportunity to give a response to a case that has been decided about concerning Canada and Aboriginal issues. You could certainly deal with that. It is not being done anywhere else.

Senator Watt: I do understand what you are describing. How do you deal with the fact that they do not want to recognize the Aboriginal people as a people? The NGOs have encountered this situation for a number of years now, and I do not think it has been adjusted yet. How do you deal with that? This is the UN now. The Canadian representatives do not want to provide assistance to the Aboriginal groups to recognize that we are a people. How do you deal with that?

Ms Bayefsky: If you are asking about influencing the representation Canada makes at the international level, part of that would be to engage in a dialogue prior to those people making those representations and let them hear from you about what you think those representations should be.

For example, when Canada sends over a delegation of six or ten persons to various international meetings, conferences, and treaty bodies, those representatives come from a variety of places, usually Foreign Affairs, Justice, Heritage and so on. If you were to meet with those people to let them know the Senate's views and expectations about what should or should not be represented, it would be an important dimension of internalizing the impact of our international obligations.

It is time to stop depending on the UN to do the job for us. It is time for us to say that we have made international commitments and that we will design the institutions to bring this material home and make it meaningful. This has not yet been done. We have relied on the courts to do it for us. The Supreme Court has done its best to take a leadership role. Often, however, it has not filtered down and we have not yet invoked Parliamentary responsibility.

The Chairman: My question has to do with the issue of the use of the words "Aboriginal peoples." I recall that at one point the Canadian position was that we would not, in international fora, particularly the ILO, use the term "people" or "peoples." It seems to me that has been resolved. Perhaps we can discuss that point with our witness.

Ms Bayefsky: There has been a movement from "people" to "peoples," to accepting the plural.

Senator Beaudoin: My question is one of comparative law. Our treaty-making power and the system of implementation of treaties is complex in our country, as in some others. We are bound by the 1937 decision of the Privy Council. We are a federal state. This is an additional - I would not say "difficulty" because I am strongly in favour of federalism.

What mechanism have other countries adopted for helping to ensure compliance with international human rights obligations that our country might usefully consider? It is not good enough to say that we have to do this and that and we do what we can. Perhaps we may learn from other countries. Perhaps there are other countries in the same situation as Canada which already have some mechanisms that are working. What do you think about this?

Ms Bayefsky: You raise a very important point. It would be important for this committee to contrast the Canadian perspective to date with that in the United Kingdom. For many years the United Kingdom refused to incorporate the European Convention on Human Rights. Parliamentary sovereignty was the ultimate rule and it could not be challenged without threatening everything that was held sacrosanct in Britain. Over the years the European Court of Human Rights developed an important and solid reputation of its own and, more and more, the approximately 40 countries of the Council of Europe began to be less reluctant in ensuring that the European standards were incorporated.

There are essentially two different regimes in European countries: the monist and the dualist. In contrast to Canada, in many European states there was a system where international law was part and parcel of the law of the land and could be raised directly before local courts. In those countries there was not the same problem as Britain and similarly Canada. Notwithstanding the fact that the European Court of Human Rights found in a number of important cases that the House of Lords had failed to take into account international law and Britain was not meeting its human rights obligations under the European Convention on Human Rights, there was a gradual acceptance of the court's standing and influence. Within the last year, the European convention was incorporated into British law. I would suggest that honourable senators examine that Human Rights Act and become familiar with the response which permits domestic courts to utilize the European convention system to a much greater extent than Canadian courts can use the human rights treaties.

Senator Beaudoin: The United Kingdom may enshrine in its laws the international obligations. That is easier than for us because it is a unitary country, with a certain devolution, but we are a federal country. I see a difficulty in enshrining an international treaty in our system as a constitutional obligation. We have to respect the division of powers between Ottawa and the provinces. There is a certain difficulty in that. We have the dualistic system. Most of the countries in Europe have the monist system, which is much easier than ours. We have copied the United Kingdom, but there is a big difference between Canada and the United Kingdom. We are a federation and it is not. Is there an example of a federal country where the dualistic theory applies? Perhaps we are the only country in the world, I do not know.

Ms Bayefsky: Of course there are other dualist countries.

Senator Beaudoin: Are they also federal countries?

Ms Bayefsky: As Canada is - yes, there are. Your question, however, really was to what extent can federalist countries implement or incorporate international obligations. Can they and have they? There are examples. You might want to examine this in quite some detail. There are many different models. For example, to point to a few, sometimes international treaties have the status of constitutional law. Sometimes they are incorporated at the level of first instance law but can be overridden by higher laws and so there is a hierarchy of laws. Sometimes they do not override past laws; they only override future inconsistent laws.

Senator Beaudoin: For example, Germany is a federal country.

Ms Bayefsky: The Constitution in Germany allows international obligations to have constitutional status.

Senator Beaudoin: Is that constitutional status in the country - by the mere fact it is adopted?

Ms Bayefsky: It is not precisely the same status as other German human rights laws. It is a hybrid between direct incorporation and having a slightly lesser status than domestic constitutional human rights laws.

Senator Beaudoin: The United States has solved the problem to a certain extent because the Senate has to intervene. If the Senate says yes, it is ratified ipso facto.

Ms Bayefsky: The Senate has to agree to its ratification.

Senator Beaudoin: We cannot do that in Canada. The Senate may say yes, we ratify, but the House of Commons also has to be part of it.

Ms Bayefsky: Actually, the House of Commons does not have to be part of it.

Senator Beaudoin: To implement a treaty -

Ms Bayefsky: To implement or to ratify?

Senator Beaudoin: To implement a treaty, we need legislation.

Ms Bayefsky: Yes. I thought you meant to ratify.

Senator Beaudoin: If it is just ratification, that is good enough. However, to render the treaty effective in our federation, we have to legislate to implement the treaty. However, when the treaty is implemented, the division of powers between Ottawa and the provinces has to be respected.

Ms Bayefsky: To answer your question, I do not think that is an insurmountable barrier to incorporation and I will tell you why. It seems to me that in terms of future treaties, there is nothing to prevent us from ensuring or making incorporation conditional upon the provinces agreeing to undertake that the treaties will be implemented in the multiplicity of jurisdictions. That would be possible in terms of future treaties, but there are not too many more human rights treaties currently under development. There are some under development and there are some yet to be ratified, such as the migrant workers convention and the American convention.

Senator Beaudoin: We have to find our own solution.

Ms Bayefsky: We can surmount it and take a leadership role at the federal level. Even if the provinces do not all implement a ratified treaty in their own jurisdictions, there is nothing to prevent the federal government, within the constitutional jurisdiction, doing more by way of incorporation. Why we have not done that yet, as you will find when you read the Canadian state reports, is that we think the Canadian Charter of Rights and Freedoms did it all for us. We constantly say that we took our human rights treaty obligations very seriously in drafting the Charter.

Yet, having done that, the Charter does not mirror precisely those obligations. We know now that more could be done to implement the treaties, particularly in light of the jurisprudence and interpretation of those treaties over the past 20 years.

To answer question on what needs to be done, we must engage in an analysis of what could be implemented, what remains to be implemented, what laws need to be either changed or initiated and, in addition, what is the Parliamentary responsibility in this context. You may wish to contact Frene Ginwala who is an important figure in the South African parliamentary system and who is part of the human rights committee in the South African Parliament that deals with this precise issue. There is a world body of parliamentarians. The very question of the function of Parliament in the implementation of international human rights obligations is before this body. Frene Ginwala may help you answer those questions.

Senator Finestone: I have two questions. First, on the issue of refugee and immigration questions, has any ever gone to the international human rights bodies of the United Nations as a question? There seems to be a sense that civil and political rights are more honoured in the breech than in the action. I would like to know what you think about that.

Second, I understood you to say that Canada participates actively and reports in all places where reports are requested. That is done, generally, on an annual basis. Could you explain the procedure in Canada? Who, in drafting the reports, has the obligation or the right to see the content of the Canadian report before it goes to the governing body requesting that report? What happens to those records once they are tabled or delivered by the international organization? Who generally receives them and examines them? Does the government - never mind the media - generally pay any attention?

Ms Bayefsky: On the refugee question, yes, indeed, some of the treaty bodies do specifically focus on refugee issues. A recent one that comes to mind is the Committee on the Rights of the Child and, to some respect, the Committee Against Torture which is interested in refugee issues. The Human Rights Committee relates to refugee issues in the context, for example, of fair trial and due process rules.

Senator Finestone: I am specifically referring to Canada. Have there been Canadian reports?

Ms Bayefsky: There has been commentary on refugee issues with respect to Canada in those committees, yes.

Senator Finestone: Has it brought about any change in the process that Canada undertakes? The issue of the Roma people has been brought to my attention. It is very much felt that there are some difficulties. I am curious to know. They are a landless people, if I can put it that way, dispersed, for the most part, across the European continent and North Africa. Is anything being done?

Ms Bayefsky: Last August the Racial Discrimination Committee produced a whole jurisprudential commentary on the Roma. You might be interested in the outcome of its report. These committees deal with those issues and they certainly deal with them insofar as they affect Canada. The question is what happens to the reports, where do they go and who looks at them.

I dealt with the question about drafting a bit earlier. I said that they are drafted by governmental officials. It is not an open process. There is no dialogue in general. There was a little bit before the drafting of the report on the rights of the child. Other than that, it is basically not a consultative process, which I think is extremely unfortunate. There is no reason it could not be a more constructive and inclusive process as to what our report should say and where we should go from here. The answer is basically that no one sees them in advance at the moment.

They are submitted, but what happens to them afterwards? The committees make recommendations on the basis of those reports. What happens to those recommendations? If an NGO has been particularly active and is able to drag along certain media, the recommendations get media attention. For the most part they are completely ignored. There is no process here in Canada to take the report and the subsequent commentary, to review them together in an open fashion and put forward constructive approaches to responding to those criticisms. Those reports go nowhere, until the next time they are due.

The Chairman: Senator Finestone, we did cover the media aspects.

Senator Finestone: I did hear of the media aspect. I was not interested in that. I am particularly interested in the process within government, which is responsible to the people. The executive is not the responsible body. The legislature is the responsible body and the executive is supposed to respond to legislative action. If none of the reports are referred to legislative action, or legislative committee, then you cannot have an action. If the media were diligent in its work, it would have realized that a big mistake has taken place; it forgets that there is a role for legislatures as opposed to the executive.

Ms Bayefsky: There is definitely a role for legislatures and it has not been fulfilled. There is a crying need for it and I hope you fulfil that function. I will only say these reports are hundreds and hundreds of pages long. They are very boring.

Senator Finestone: Most of life around here is boring.

Ms Bayefsky: Boring in the context of it being difficult to solicit media interest. Your researchers - and I hope you have sufficient staff - are perfectly capable of going through the reports and finding the commitments made by government to take certain legislative action. The international treaty body process is tedious in many ways and the media does not follow well the committee processes, neither in New York nor in Geneva. For example, I went to the last review of Canada's record on discrimination against women in New York and there were two people sitting at the back. New York is only an hour away by plane and yet Canadian NGOs did not show up. The media will not come either. In some respects, although there is an obligation on the part of Parliament to take it seriously and generate an interest, there is also an obligation on the part of NGOs in Canada to take it much more seriously.

Senator Finestone: Is there a good model, in any country of the world, of governments responding to reports by the UN at which we might look?

Ms Bayefsky: There are a number of specific books written on the NGO-government relationship.

Senator Finestone: I am not interested in NGOs. Of the 180 member countries of the United Nations, I am interested in which government sign international covenants and make responsible decisions and how many of them have a process to respond to the reports that are done by the UN. Do you know of any particular country that might be a good role model for Canada?

Ms Bayefsky: There is not one, simple answer. I would say that it depends on the subject matter. There is not one country that responds equally well to all six blocks of human rights issues. Some do a better job concerning children, for example, while others do a better job on another kind of right.

In general, there are a number of countries, and I would point to the Nordic countries in particular, as well as the U.K., that have had a very good dialogue on children's rights.

Senator Finestone: So does Canada. I am not concerned about that.

Ms Bayefsky: I am talking about the issue of international obligations and the treaty body processes and to what extent they should inform domestic action.

Senator Kinsella: To build on Senator Finestone's question, I think that the key to this is federal-provincial-territorial cooperation. Indeed, those very words are the words that you will find in the final judgment of the judicial committee of the Privy Council in the labour convention case. It is a constitutional principle in Canada. It states:

If in the exercise of her new functions derived from her new international status Canada incurs obligations, they must, so far as legislation be concerned, when they deal with provincial classes of subjects, be dealt with by the totality of powers - in other words, by cooperation between the Dominion and the provinces.

There is a constitutional obligation for federal-provincial-territorial cooperation. At the very first federal-provincial conference of ministers responsible for human rights in Canada, which took place December 11 and 12, 1975, the ministers examined a summary report on modalities and mechanisms for implementing the UN covenants. The report was drafted by Professor Tom Symons. In that report the federal, provincial and territorial governments agreed on the procedures for acceding to a convention. They also agreed on procedures for denunciation, amending an international obligation relating to the composition of the Canadian delegations and, most importantly, they agreed on the procedures to be followed in the event of criticism of a provincial law or institution by an international body. You have made reference to one under the optional protocol affecting Ontario.

In it both the federal and provincial governments have agreed to act in "concertation": that is each of the governments exercises the fullness of their power. Concertation meant real concertation.

I want to build on what Senator Finestone is saying. To complete the structure we need to have that continuing committee, or their ministers, accountable to Parliament.

Do you see any constitutional impediments or any problems whereby representatives of the continuing committee ought not to keep this parliamentary committee well informed of the work they are doing? Do you see any reason why the representatives should not inform us, whether that work be on Canada acceding to new instruments, or whether Canada will ever make a proposal to amend an instrument that we have already ratified, or whether we derogate in any way from an instrument?

Is it true that while the periodic reports submitted under the Covenant on Civil and Political Rights is attempting to achieve one kind of objective, the reports that are submitted under the Covenant on Economic, Social and Cultural Rights have a totally different objective? In the latter case, that is the social audit mechanism. The social and cultural rights are ongoing rights. The right to health is an ongoing process. It involves, in reality, federal-provincial collaboration in terms of the spending power.

I want to do what Senator Finestone wants to do. How do we complete the circle to tie what is happening administratively to the oversight that is the responsibility of Parliament to provide?

Ms Bayefsky: I could not agree with you more. Up until now there has been a glaring hole in the relationship between international law obligations in the human rights field and Canadian parliamentary responsibility. I hope you take up that challenge because the continuing committee has met for 25 years behind closed doors. The review of the extent to which Canadian law meets our international obligations is reviewed and analyzed before and after the international committees meet. That information is not available to Parliament, and of course it should be.

I do not see any provincial-federal constitutional issue that would be an impediment to your committee informing itself of those results. The primary reason for this is because not only should there be collaboration in the words that you have read, but also because the social union suggests and encourages it and puts human rights in its opening provisions. It is also a federal responsibility to ensure that Canada meets its international obligations. It is a federal responsibility to ensure that the integrity of Canadian actions at the international level is in fact met. When Canada fails to meet its international obligations, its international reputation is jeopardized. That ought to be a concern of Parliament.

The whole issue of meeting Canada's international obligations through domestic law, practice and policy, even where it may be within provincial jurisdiction, is a concern of Parliament. It may not be able to pass laws directly enforcing those obligations, but it has an obligation to inform itself and to make recommendations as it sees fit. I encourage you to do so.

Senator Kinsella: Professor Bayefsky drew our attention to the Human Rights Act adopted by the Parliament of Westminster three years ago. It is true that in that act they have made the European Convention on Human Rights part of their domestic law? In that situation a lawyer can go to court and say, "A given statute of the United Kingdom is violating the rights of my client." The court must hear the argument and measure it against the European convention and issue a judgment, but the judgment cannot make ultra vires the law. It then must go to Parliament, where it will be up to the House of Commons and the Lords to pass legislation.

If that model were tried in Canada, do you think it might give domestic effect to the international covenants, given that the U.K. is a Westminster system as well?

Ms Bayefsky: There is some irony in this. I remember being consulted in the course of their consideration of that legislation. I was asked as a Canadian because many in the U.K. thought they were taking the model from section 33 of our Charter, the notwithstanding clause. They were trying to avoid losing parliamentary sovereignty forever, and that was their way of keeping it. They took heart in Canada having done so in its Charter.

I thought it was a bad idea for Britain. I do not think it is a good idea for us to do it in return. Of course, as it turns out, to date section 33 has not had the impact that it might have had.

Britain, however, has moved toward taking international human rights law internally much more seriously than we have. We need to join with the rest of the international community, such as the Council of Europe, in moving forward to do the same.

Senator Kinsella: Professor Cohen wrote an article a number of years ago in which he pointed out the positive impact that international human rights instruments has on the improvement of Canadian jurisprudence and Canadian statutory law. Would you say a word or two about that?

Ms Bayefsky: That was in 1982, at the beginning of the Canadian Charter of Rights and Freedoms. We encouraged it as a mechanism for realizing our international human rights obligations. Since that time, Chief Justice Dickson, and subsequently Chief Justice Lamer, have said that the Supreme Court and the other courts of Canada have an obligation to use our international human rights treaties to inform Canadian law as much as possible. The point is that Canadian law ought to be at least as protective of human rights as is international law.

There is no doubt that in some respects Canadian law goes further, but insofar as there are shortfalls, we ought not to hesitate to try to use international human rights standards to improve our domestic circumstances. That applies to the state reporting system, the individual communication system and the system that the treaty bodies call "general comments," such as the one on the Roma. These systems develop jurisprudence generally and try, for example, to expand definitions of the rights of the disabled and Aboriginal peoples to reintegrate them into Canadian law. This is the step that is missing.

We develop and prepare these reports, we send people to Geneva and New York, and there is no follow-up. The role of Parliament, a particularly important role, is that of following up the outcomes of the international reviews. That, however, is not being done.

[Translation]

Senator Ferretti Barth: Ms Bayefsky, in your presentation, you mentioned your priority. The Canadian government must also establish its priorities. We are dealing with many national and international problems, and we expend a great deal of energy and resources trying to solve these major problems. Could you tell us the priorities you have in mind and those the Canadian government should be turning its attention to?

Does the Government of Canada comply with its national and international human rights obligations? And, if so, whom does it report to? Which organization or agencies must the Government of Canada account to?

There is much talk about NGOs. How many such organizations do we have? I am overwhelmed to hear there are so many organizations calling themselves NGOs. Many meetings are held in Geneva and around the world. What do these meetings accomplish? Have we achieved anything concrete from these meetings or do a lot of people just talk without producing any results? What must be done to correct this situation?

I am very interested in working, but working to achieve benefits and concrete results.

[English]

Ms Bayefsky: You asked some excellent questions. First, in terms of translating the words, the language and the commitments into concrete actions, I remind you that the Canadian government sponsors the annual resolutions of the Human Rights Commission and the General Assembly on the human rights treaties and their effective implementation. I would obtain a copy of Canada's comments on what should be done with those human rights obligations. Then, I would ask what are we doing to make them effective? You will see in those comments a commitment to translating the results of the treaty bodies into meaningful results at home. You can begin with commitments that are obviously made by the government and then insist that those commitments meet with concrete action in Canada.

That requires examination of the state reports to consider what they say and to ask what the response has been. Is it good enough? From the Senate's perspective, has it met obligations? Does it meet the obligations within provincial jurisdictions?

I urge you to examine this as a step-by-step plan. I have made this recommendation to the High Commissioner.

Regarding the translation of international obligations into domestic obligations, it would begin with a review to ensure that the current laws meet the obligations. It would also review the work and assessments of the federal-provincial continuing committee. It would try to engage in dialogue during the writing state reports. It would take the reports after they are produced, together with the committee's consideration of those reports, and analyze them to determine responsible follow-up action. In addition, I would ask what individual cases have been decided against Canada, and what the Government of Canada's response was to those decisions. I would determine if the response was adequate and how those problems could be solved.

In this process, we must recognize that missing from the system is a failure to engage in a constructive dialogue with Parliament and with the constituencies. We have not opened the dialogue that will make our international obligations part and parcel of Canadian policy.

Currently the process it is a behind-closed-doors, executive exercise. Honourable senators have an opportunity to begin on a new path.

The Chairman: That was an excellent point upon which to conclude. When you arrived, you indicated that you were the first witness. I hope that you will take the opportunity again to appear before the committee and that this has not been too onerous. We are attempting to see what our role can be; we are looking at the options. You have helped us in that respect, and I thank you.

Senators, our next witness is Mr. Alex Neve, Secretary-General of Amnesty International Canada.

Mr. Neve, please proceed.

Mr. Alex Neve, Secretary-General, Amnesty International Canada: Honourable senators, I appreciate the opportunity to be here this afternoon.

Amnesty International and I, personally, have had dealings with a number of you individually with respect to certain human rights issues over the years. It is a delight to be able to see you constituted in this manner giving your concerted attention to what we obviously consider to be pressing and important concerns.

I did catch some of Ms Bayefsky's presentation, although not all. I apologize if I repeat anything she has already covered, although I will do so from the slightly different perspective as I come from a non-governmental background.

I should like to begin with a brief reminder of who we are. I am sure this will be very familiar to most of you, but I wish to make it clear that Amnesty International is an international human rights organization. Notably, just last week we marked our fortieth anniversary. We have been campaigning and researching with respect to human rights concerns worldwide for four decades. That is an anniversary that we did not necessarily celebrate. I used the word "marked" advisedly as this is a time for sombre reflection on the state of the world as well as celebration for the achievements that have been made and the continuing and growing commitment and dedication of men, women and youth around the world on the human rights front.

In that regard, I brought with me for your information the annual report that we issued last week at the time of our fortieth anniversary. It is our review of the state of affairs, worldwide, with respect to human rights for the year 2000.

Amnesty now counts well over 1 million members worldwide, literally in every corner of this planet, on every continent. In Canada, Amnesty has in the range of 75,000 members who are active around human rights issues. It is important to highlight that Amnesty truly has become a global movement. It has always considered that international and regional legal systems can and must play a central role in the protection of human rights. As such, it has devoted considerable attention to initiatives to develop human rights standards and monitoring mechanisms which have been taken over the past 40 years at the United Nations, but also in regional bodies such as the Organization of American States, the Council of Europe, and the Organization for African Unity.

Obviously, there has often been understandable and considerable skepticism of the ability of such international bodies to take effective action in the face of widespread violations of basic rights. However, we continue to be of the view that truly internationalizing our conceptions of rights and the systems designed to protect those rights is an essential piece of the global human rights struggle.

Amnesty has been at the centre of the development of many new human rights instruments over the years, such as the United Nations Convention Against Torture in the mid-1980s and, recently, the Rome Statute of the International Criminal Court. At present, we are actively encouraging the United Nations to adopt a treaty dealing with the ongoing and serious human rights concern about disappearances.

At the same time, we have always pressed states to do more to strengthen the existing institutions charged with the task of overseeing the many international and regional treaties that have already been developed over the past 50 years, almost all of which are dramatically under-resourced and are often significantly politically undermined in their efforts to do their jobs and tackle human rights problems when they occur.

For us, much of this work has concentrated on the areas of human rights protection directly associated with our own mandate, that being defending prisoners of conscience, combating torture and disappearances, and working against the death penalty and political killings. We have also maintained a broader eye when it comes to the improvement of existing standards and development of new ones more generally, a broader eye which encourages a wide promotion of the full range of human rights that stem from the Universal Declaration of Human Rights.

As I understand it, you are currently considering Canada's role in the international system and, in particular, the ways in which our engagement, or perhaps non-engagement, with the international system for the protection of human rights will have consequences and play out at the national level.

In my appearance this afternoon I should like to touch on four general areas relevant to that theme. First, in a general sense, I have some comments with respect to Canada's role internationally. The second area is Canada's record of signing on to international and regional instruments. The third is examples of how those obligations are or are not implemented nationally. The fourth area will be recent examples of international criticism, or at least suggestions that have been made as to areas in need of improvement in Canada by international bodies.

Beginning with Canada's role internationally, we - and I use the word "we" in its broad sense to include Canadians, the media and politicians - often make much of the fact that Canada is considered to be one of the good guys on the international stage when it comes to human rights. Do not get me wrong; I am totally of the view that there is much truth in that. Over the 53 years since the Universal Declaration of Human Rights was adopted, Canada has unquestionably made important contributions to advancing human rights within international bodies, often taking a leadership role. Perhaps one of the most recent and important examples has been the important leadership that Canada has demonstrated and continues to demonstrate in the drive toward the establishment of an international criminal court.

I highlight this at the outset not because I want us to easily conclude that Canada is doing a superb job, but rather for two important reasons. I often fear that we too quickly jump to the cliché and, at times, smug conclusion that we have a splendid reputation and record in the area of human rights and thus close our eyes to real issues that need attention in the country and to recognizing that there is an international perspective through which those issues should be understood and assessed.

Amnesty International has seen that itself in the past two weeks in some of the reaction to the fact that our annual report for the year 2000 - released just last week, as I said - includes, for the first time in four years, an entry on Canada. In that entry, among other things, we have highlighted issues dealing with Aboriginal justice and policing, excessive force used against peaceful demonstrators at the Summit of the Americas and some concerns in the area of refugee protection.

It has been interesting to see the response. Much of the response has been quite positive and thoughtful, interested in the fact that Canada is willing and quite interested in understanding what that means internationally and in gaining a perspective on it.

However, much of the response has been very defensive and dismissive, going not much further than, "Come on, we are one of the good ones. Save your critique for the countries that have the real problems." I am not suggesting at all that problems in Canada are equivalent in any way to the problems in Sudan, Colombia, or elsewhere. We never rank or compare in our human rights work.

I would suggest that part of the responsibility that comes with being one of the "good ones" is a willingness to be ever-vigilant and concerned when even just one violation occurs.

The second and related reason that I raise this point is that, of course, as I said at the outset, there is truth in it. We have earned a well-deserved reputation at the international level for being a country dedicated to the protection of human rights. As such, we are an important player when it comes to advancing these issues on the world stage, able to move matters up the agenda, bring other states on board, and build consensus when deadlock rears its ugly head.

However, anything less than scrupulous regard for that record would diminish our ability to be that leader. If Canada does not keep its own house in order, the global human rights campaign will lose a vital champion.

I would now like to move to Canada's record of signing on to international and regional human rights treaties.

The global system for human rights protection is complex and multi-layered. It operates internationally within the United Nations and regionally within a number of other bodies. Some of the standards and machinery are firmly based in treaties. Others stem from a vast array of declarations, resolutions and human rights experts working under the auspices of bodies such as the United Nations Commission on Human Rights, the offices of the High Commissioner for Human Rights, the UN Secretary-General and equivalents at the regional level.

I will limit myself, at this point, to the treaty side of human rights protection, perhaps because it is the easiest area where I can provide a quantifiable answer to the question: How is Canada doing and what more could be done?

At the United Nations level, we have, of course, signed on to the major treaties. I expect Ms Bayefsky highlighted some of this earlier this afternoon. These include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural rights, the Convention Relating to the Status of Refugees, the Convention on the Elimination of all Forms of Racial Discrimination, the Convention on the Elimination of Discrimination Against Women, the Convention Against Torture, the Convention on the Rights of the Child, and now the more recent Rome Statute for an International Criminal Court, which is not yet in force.

With those ratifications, we have become subject to the periodic evaluation and assessment of six expert bodies at the UN level. We have also agreed that two of those bodies, the Human Rights Committee and the Committee Against Torture, can receive complaints from individuals who believe their rights have been violated under either the civil and political covenant or the torture convention. Both bodies have issued rulings identifying human rights concerns in Canada.

However, there are two bodies that do have the power to receive individual complaints, which Canada has not yet recognized. The first is the Convention on the Elimination of All Forms of Racial Discrimination. Canada ratified that convention in 1970, but at the time did not make a declaration under Article 14 of the convention that individual complaints could be made against Canada with respect to alleged violations of that convention. At the present date, 29 other countries have done so and have recognized the power of that committee to hear individual complaints.

Amnesty International has recently pressed Canada, 31 years after ratifying that convention and in the lead-up to the World Conference Against Racism later this summer, to do so and to recognize the power of individual complaints to that committee. It would open up important international remedies for, among others, Canada's Aboriginal peoples.

The second individual complaint power not yet recognized by Canada stems from the recently-adopted Optional Protocol to the Convention on the Elimination of Discrimination Against Women. That optional protocol and the power of individual complaint it contains came into force only in December of last year. It does not have the 31-year history of the racial discrimination committee. A number of states have moved quickly to sign on to it. Already, 18 states have done so, ratified it and accepted that power of individual complaint.

The optional protocol would provide an option for women who believe their rights under the Convention on the Elimination of Discrimination Against Women have been violated. In both instances, allowing complaints to be made opens up new avenues of human rights protection for individuals in Canada. It also sends an important message of leadership to other states and allows Canada to effectively and decisively press them to follow suit and similarly recognize the power of individual complaint.

I would also like to highlight for you three UN-level human rights treaties to which Canada has not yet signed on. I have acknowledged the number of important treaties that Canada has accepted, but there are three that I would like to bring to your attention that it has not.

The first is the Second Optional Protocol to the International Covenant on Civil and Political Rights. This document aims to abolish the death penalty worldwide. It was adopted in 1989 and came into force 10 years ago. There are 44 states that have ratified that document, but Canada has not yet ratified it. Conventional thinking was that perhaps one of the major reasons that Canada was reluctant to do so was because of our extradition law. We are an abolitionist state when it comes to the death penalty, but until recently Canadian law has allowed individuals to be extradicted to countries where they would face the death penalty. The Supreme Court of Canada earlier this year clarified the law on that point and has said that can no longer happen.

In our view, therefore, it is time for Canada to take the final step and sign on to that document. In many ways Canada asserts important leadership worldwide around the death penalty issue. The fact that Canada has not yet signed this document is a glaring omission and there is no reason that it cannot go ahead now that the Supreme Court has issued its ruling.

A second treaty, to which Canada has not yet signed on, is the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. The migrant workers convention was adopted in 1990. At the present time, however, there are only 16 state parties to this treaty. Twenty must sign on to it before that convention will actually legally come into force, so it is not yet in force. Therefore, the important protections that it can provide to migrant workers worldwide are not yet available to migrant workers. That in itself is an important reason for Canada to sign on. It would be an important contribution toward strengthening protection worldwide. Equally important, of course, is the fact that large numbers of people, legal and underground, are migrant workers in Canada. They experience a wide range of human rights problems and could benefit from a strengthened international system for the protection of their rights.

The third UN treaty that Canada has not signed is the Convention Relating to the Status of Stateless Persons. That convention was adopted in 1954 and came into force in 1960. Forty-nine other states have ratified that treaty. Stateless persons are among the most overlooked, neglected and thus most vulnerable groups of people in the world, for they do not have a state to stand behind them and protect and defend their rights.

While the numbers of stateless persons are obviously much larger in other parts of the world, a number of such people are in or travel to Canada. It is time that Canada take steps to ensure that it is doing its part to ensure their protection.

That is at the UN level. I also want to draw your attention to another very important forum, and that is the Organization of American States. Canada received a lot of attention while the Summit of the Americas was in Quebec City, and also last year when we hosted the general assembly of the Organization of American States in Windsor. We have been part of the OAS for 11 years now. In those 11 years, Canada has not yet ratified any of the OAS human rights treaties.

That does not mean that Canada escapes OAS human rights scrutiny. One of the OAS's important bodies, the Inter-American Commission on Human Rights, has jurisdiction to monitor human rights concerns in the country and to hear individual complaints. Along with the UN Human Rights Committee and UN Committee Against Torture, it becomes the third international body that has the power to hear individual complaints against Canada.

There is so much more that Canada could do to deepen and strengthen its human rights participation in the OAS system. Six human rights documents are in need of Canada's signature and ratification.

First and foremost is the American Convention on Human Rights. It was adopted in 1969 and came into force in 1978. Twenty-two of the OAS's 34 active members have signed that convention. Notably, all of those missing are English-speaking countries: Canada, the United States and all but one of the English-speaking countries in the Caribbean. As a result, a lamentable divide has been created between the Latin American countries on one hand and North America and the Caribbean on the other.

What would Canadian ratification mean? Here at home it would bolster the ability of the Inter-American Commission on Human Rights to monitor Canada's record and hear complaints. It would also open up the possibility that the Inter-American Court on Human Rights could hear cases involving Canada. That would certainly be good for Canadians who feel aggrieved by Canadian action or inaction.

More importantly, Canadian ratification would give Canada the ability to be a strong leader in the Western hemisphere at a time when the OAS human rights mechanisms are weak and under-supported. It would provide OAS with a greater ability to push ahead with a positive reform agenda and enable it to encourage, for instance, Caribbean states to come on board. It would enable it to take steps to ensure that while the Americas are charging ahead with integration on the trade front, they do not charge ahead with disintegration on the human rights front. There is a very worrying disjuncture between the two trends within the Americas that needs attention, and Canada could play an important bridging role there.

What is the obstacle? Many of you may know the answer to this question already, and it is a controversial one, I will admit. It is Article 4 of that convention.

The most important provision, arguably, in any human rights treaty is the right to life. Article 4 of the American convention states that the right to life shall begin "in general" from the moment of conception. That obviously raises questions as to Canada's current law on a Charter-protected right to access to abortion. Women's groups and others in Canada have, therefore, expressed their concern that Canadian ratification must not put that right in jeopardy.

Women's groups in other parts of the Americas have indicated that Canadian ratification would be of tremendous assistance in their own struggles to secure a similar right in the many other parts of this hemisphere where it simply does not exist.

Amnesty International itself does not take a position on abortion rights as part of our human rights program. However, we have pointed out to the government that there is clear evidence, including evidence from the Inter-American Commission on Human Rights itself, that the words "in general" do mean that a state is not barred from maintaining freedom of choice, if it so desires.

We have also endorsed a number of proposals that have been made as to reservations or statements of understanding that could accompany Canadian ratification of that convention and thus maintain the state of Canadian law on that issue. In particular, we have highlighted and endorsed one made by Professor Rebecca Cook of the University of Toronto who has formulated a very powerful equality rights and reproductive health framework for a statement of understanding which could accompany Canadian ratification.

All of this information and much more with respect to Canadian ratification of that convention is before the federal and provincial governments and has been for some time. The options are clear. The need for ratification continues to be pressing at a time when alarming human rights violations continue throughout this hemisphere. I would suggest that this committee's attention to the question of Canadian ratification of that convention could play an important role because it has been very difficult to receive public, open attention to the issue. It comes back to points that were being made in the previous presentation that the one body charged with responsibility for considering Canadian ratification of treaties such as this, the continuing committee, does so behind closed doors. We and others have made explicit requests to come and just address that committee - not engage in dialogue, but just to address the committee on this particular point - and we have been told that that is not possible and that there is no option for that kind of public access.

Two other important OAS human rights instruments flow from the American Convention on Human Rights. One deals with the death penalty, and again, Canada has not ratified it. The other is a document known as the San Salvador Protocol that deals with economic, social and cultural rights. It is in some respects similar to the equivalent UN treaty dealing with those rights, but there is a very interesting additional element that comes out of this protocol.

The right to form and join trade unions and the right to education in the protocol offers an option for individual complaints to be made with respect to violations of those two rights. That is a remedy that simply does not exist at the present time at the international level. There are ongoing discussions and efforts to consider opening that up at the UN level, but here at the OAS level, at least with respect to two rights in that domain, an existing option would allow individual complaints to be made.

The other three OAS human rights treaties deal with specific theme areas. One is on violence against women. Only four of the 34 states in the OAS have not ratified that treaty: Canada, the United States, Jamaica and Surinam. There is also an OAS treaty dealing with torture that in many respects is equivalent to the UN treaty. A third one deals with disappearances. Although there is some effort underway to move towards a UN-level treaty dealing with disappearances, there is not one at present. The OAS treaty, therefore, has quite an important international dimension to it.

I apologize for being somewhat longwinded in all of that. However, I have put in front of you 11 suggestions with respect to ratification at the international and regional level. I have also offered two individual complaint mechanisms which Canada's attention should be directed to: the racial discrimination convention and discrimination against women, and, at the UN or OAS level, nine treaties and/or protocols which Canada has not yet accepted.

Having made that plea for Canada to sign on to quite a number of documents and encouraged you to add your voice to that call, the third point is to consider what Canada has done with respect to the treaties it has already ratified. This area is challenging. Some international obligations have been specifically enacted in Canadian law. As discussed in depth in the previous presentation, only through those means do those obligations become directly enforceable in Canadian courts and before Canadian tribunals. Otherwise, they serve as interpretative aids in applying the Charter and other domestic laws.

Canada does take ratification seriously. I do not want to suggest that this is not the case. Canada does engage in fairly comprehensive legal analysis and reform when taking that step. The recent legislation adopted to accompany Canada's ratification of the Rome Statute of the International Criminal Court is a fine example of that.

The problem is the matter of ratification and discussions with respect to any accompanying challenges or problems coming before the continuing committee. It is there that questions of necessary legal reform may be discussed, but the committee is not public. As I have highlighted with our own example, it is impossible for NGOs and other interested commentators and observers to have any access to that committee. It does not possess the necessary political clout to deal with some of the difficult controversial issues which sometimes arise. For example, the American Convention on Human Rights will need a political decision at some point as to whether Canada is prepared to go ahead with that and how.

That happens against a backdrop within which it has now been well over a decade since Canadian political leaders at the federal, provincial and territorial levels have gathered - even at the ministerial level - to discuss human rights issues. It is an exercise long overdue and it should be something that becomes a regular part of the landscape in Canada.

While we do not know much of the continuing committee's deliberations, we do know that the degree to which legal obligations that are included in treaties are specifically made part of Canadian law is very uneven. One recent example, just a few weeks ago, was when the Supreme Court of Canada was asked to look at the state of Canadian law with respect to an important Canadian human rights obligation, notably Article 3 of the Convention Against Torture. This provision indicates that no one, at any time, in any circumstances, should be deported, expelled or extradited to a country where that person is at risk of being tortured. Canada ratified that convention in 1987 and has never specifically enacted the provision into Canadian law. To some degree, our refugee protection standards overlap it and provide the necessary remedies, but there is a considerable area where the overlap is not there, most notably, in difficult cases where individuals have been accused of some sort of criminality, possible involvement in human rights violations or terrorism. That issue has come before the Supreme Court of Canada.

The failure to be explicit, however, about that international obligation in Canadian law has meant complicated and time consuming Charter litigation, up and down numerous levels of court. Advocates seek to create innovative and often radical remedies to enforce an international obligation which is clearly binding upon Canada, but for which there is no obvious body within the Canadian judicial or administrative system to look to for enforcement.

Increased parliamentary scrutiny of those sorts of examples through bodies such as this in the lead-up to ratification immediately following ratification and on an ongoing basis when legal reform happens with existing Canadian laws would ensure that attention is always being paid to the implications of these obligations for Canadian law. When law reform is undertaken, is that law reform attentive to existing human rights obligations? The degree to which that happens at the present time is uneven and, in many instances, non-existent.

The last area I wanted to touch on was international criticism of Canada's human rights record. Canada has not escaped criticism on our human rights record, our "good guy" reputation notwithstanding. In the last two and a half years, bodies such as the Committee Against Torture, in November of last year, the Inter-American Commission on Human Rights, in an early 2000 study dealing specifically with Canada's refugee system and the United Nations Human Rights Committee in 1999 have all raised a number of concerns about Canada's record in a number of human rights areas.

It is by no means clear what mechanisms exist and are used by the government to respond to the recommendations made by bodies such as those. I have never seen, for example, a publicly-accessible action plan outlining the government's plans to address these concerns. In the course of ongoing law reform that follows such recommendations, some of the points may be dealt with but others not. It often seems rather accidental.

A current example is the recommendation made last November by the United Nations Committee Against Torture that Canada establish an independent body to receive and investigate complaints of torture and ill treatment. The committee indicated that such a body would, in particular, be able to deal with complaints originating with Aboriginal peoples, but also to deal more broadly with such issues.

Eight months after that recommendation, I am not aware of any kind of public reaction from the government to that recommendation. I have certainly not yet seen any signs of what process may or may not be established to consider the means by which Canada can act to take steps to comply with that recommendation.

As a result, we have decided that we will now move to the step of mounting a public campaign to build pressure to ensure that Canadians are aware of an important recommendation that an international body has made with respect to our human rights record and to try to draw in a broader range of people for campaigning for compliance to that recommendation.

This plays out as well in individual cases. In 1999, the United Nations Human Rights Committee recommended that Canada ensure that a full public inquiry be held into the 1995 shooting death of Dudley George by the Ontario Provincial Police at Ipperwash Provincial Park in Ontario. Since then we have written to the federal government asking what it is doing to comply with that recommendation made by the United Nations body. The response has been that the federal government considers it to be a matter of provincial responsibility because the Ontario Provincial Police were responsible for pulling the trigger. The provincial government, of course, insists that international human rights bodies are the federal government's domain.

This tension is one that came out in the previous presentation as well. It is of crucial importance. Human rights protection cannot be a matter of federal-provincial buck passing. There needs to be a coordinated effort, which means serious political will at all levels of government that stands behind such an initiative to ensure a concerted effort is made to comply with all recommendations made to Canada, regardless of which level of government is responsible.

Those are my initial offerings to you on the question of Canada's engagement with the international human rights system. I look forward to further interaction as you move forward and start to deal with those areas in greater depth.

I would be pleased to deal with any questions or comments or engage in any discussion you may wish to pursue now.

Senator Watt: I have listened with great interest to what has been brought forward. I cannot help raising some questions that I feel should be a part of our committee agenda.

In a state, residents of that state have their government to represent them. However, that situation does not exist in the case of Aboriginal people. We had a state once but it has since been taken away. We are still trying to deal with that even after so many years.

It puts you in the position of having to ask, "Where do you get protection? Where is the machinery to protect your rights no matter how different those rights may be from other rights?" It is linked to the fact that the machinery of the government would rather see the problem go away than recognize that the problem exists. That is the consensus of Aboriginal people in this country. Even though we try to see the light at the end of the tunnel in order to keep on going, it is difficult to see the light when we do not have instruments of our own to protect us. I am speaking not at the international level, but within the regional and national level for interactions between the nation and the regions.

The system cannot be allowed to continue without dealing with those crucial issues. It is critical that section 35 be developed. That section is not finished. It might serve us well to go to the Supreme Court for a ruling on how to align ourselves with the state. Since we do not have a state or government of our own, we must rely on the state. We rely on a government that is foreign to us. At the same time, that government regards us as a foreign body. In other words, it does not fully appreciate and recognize the differences that exist between us.

How do we deal with this? A further ruling required from the Supreme Court. The politicians need to go one step further and agree that we do have those rights. We are sending a message to the international community that Canada is not taking care of its Aboriginal people. We need to find a solution to bring Canada back to where it used to stand before. Ever since we negotiated section 35, it has been a downhill battle. We are no longer moving up; we are going further down, deeper and deeper into being perceived by the general public as costly to society. That does not have to be. How would you deal with that?

Mr. Neve: I share many of your concerns. My reaction and response is more internationally focused than nationally in the sense that my expertise does not so much lie with respect to Supreme Court rulings in this area, but with what is or is not happening at the international level. Professor Bayefsky also highlighted the theme that emerges from the various international bodies that examine Canada's record of compliance with our existing human rights obligations.

It has been stated that Amnesty does not rank and compare human rights concerns, but in the words of many of those tribunals or bodies, the treatment of Aboriginal peoples is Canada's most pressing human rights situation.

A number of the existing bodies do have some ability to make recommendations with respect to how that situation can be improved. Those mechanisms, those bodies and treaties are not specific to indigenous peoples. They are broad, generic human rights treaties, perhaps as broad as dealing with all civil and political rights or even a more specific treaty, such as one dealing with torture, or women's equality. For very particular and sometimes different needs the reality and historical context of indigenous peoples are simply not reflected in those documents.

That is why for many years indigenous peoples who are very active at the UN level and also within the Organization of American States, have pushed for there to be instruments within the system which respond to the reality of indigenous life. It has been a long haul. A draft declaration on the rights of indigenous peoples has been slowly working its way through the UN system. In many ways that would give fulsome and vibrant expression to those different, unique and important needs of indigenous peoples, not only in Canada but worldwide. The declaration would highlight the indigenous peoples connections to the land and reflect the fact that in many instances they are not a minority that has come after the fact, but were the first dwellers in that land. Indigenous peoples' rights therefore should be considered separately and not be lumped in with other minorities. This committee might want to turn some attention to this area.

I have not followed the declaration in depth, but there are a number of people in Canada who have. It is making very slow progress. I hear conflicting assessments on Canada's position. Occasionally, I hear that Canada has asserted some positive leadership and helped to move things forward. At other times I hear the opposite. Once we have a document of that kind, even though it is not a treaty, it will become an important measuring stick and committees such as this will be able to look at it and, perhaps, better understand the needs of our indigenous peoples.

Committees such as this and perhaps other parliamentary mechanisms can start to open up and look at Canada's record of compliance with human rights standards and look at Canadian law, practice and policy across a wide range of indigenous issues.

Senator Kinsella: I will continue with the line of questioning of Senator Watt and turn to the continuing committee to which you have referred.

Madam Chair, on the weekend I found in my notes at home a paper that I had written on the establishment of the continuing committee. I will leave these notes with you to be translated. The notes only bring us up to about 1983. When this paper has been translated into both official languages it may be distributed to members of the committee.

Senator Watt has drawn our attention to section 35. In Parliament last year we passed the Nisga'a Final Agreement which gives significant self-government, not a form of delegated authority at all. Therefore, the world has changed domestically and maybe the continuing committee ought to include representatives from the First Nations people as they continue to do the work of preparing reports, responding to the questions that the Human Rights Committee asks of the report and considering the redaction of new instruments. I sat on the working group on the convention on the rights of indigenous peoples, which was in 1988 or 1989. It has not made a significant amount of progress.

I jotted down some notes while you were speaking. Several items related to the work of the continuing committee. You drew our attention to the fact that you think the continuing committee is considering whether Canada should ratify the inter-American convention. Again, it is 11 years since we became members of the OAS.

Do you have any idea as to whether the secretive continuing committee has been examining the number of reservations that Canada must make in a public gathering? In Montreal, a couple of years back, the former chairman of the Inter-American Commission on Human Rights, Claudio Grossman and I were on the same panel. I put the question to him whether he thought Canada should ratify the convention with as many reservations as was necessary to get agreement that Canada would ratify. He said yes. He added that without being a signatory to the convention you are not eligible to be part of the human rights machinery of the OAS." He thought that was the most important loss from the regional system of Canada being excluded. Would you comment on that?

Mr. Neve: With that last point, I would agree. Amnesty has been campaigning quite strenuously around this issue for a year now. We began with the meeting in Windsor last year, we have steamed through Quebec and now who knows towards what goal. The point we have made is that Canadian ratification of the American convention and the other OAS human rights treaties would be of some human rights benefit to people in Canada. That is not our main concern. Canada has already signed on to a number of UN treaties. Canada has the Charter of Rights. We are not that desperately convinced.

There are some benefits. For instance, I referred to the fact that individual complaints about at least two economic and social rights could be brought through Canadian ratification of the protocol to that convention. For the most part, it is not a huge Canadian issue. It is a regional human rights issue at a time when human rights violations in the Americas are continuing to be of grave concern. We are not talking about the 1980s and widespread disappearances in El Salvador and Guatemala and the dark days of Pinochet in Chile, but we are concerned about Columbia and Haiti and numerous other serious human rights challenges in this hemisphere. We need a strong regional human rights system.

We have a regional human rights system that has been in existence for several decades that has done good work, from time to time in some situations, but more recently has probably been undermined more often than supported. It needs a champion - the leadership of someone who can really play an effective role. I believe that is the same point Professor Grossman expressed to you that it is only by signing on to everything and committing ourselves to the system and equally to the other states, which we want to press to live up to these obligations, that we will be unencumbered in our ability to assert that kind of leadership.

Senator Kinsella: In Amnesty's report on Canada contained in this year's report, you drew our attention to the treatment of refugees. Does Amnesty have any concern about persons who are denied refugee status in the Canadian process? One of the reasons for denial of refugee status in Canada is that there is suspicion that individuals were involved in war crimes themselves and, therefore, are not given refugee status but are escorted to the border. Is there a breakdown in this area? Should Canada instead be taking these people before one of the war crimes tribunals?

Mr. Neve: Absolutely. We by no means assert that war criminals, or criminals against humanity, should receive refugee status. We will occasionally intervene on their behalf if we believe they are about to be deported to a country where they may themselves be tortured or face execution. From our human rights perspective that does nothing to further the broader cause of justice that is at stake.

Our concern has been that, up to the present time, Canada's approach in this area has overwhelmingly been one of deportation rather than prosecution or extradition. What happens in that context is one of two likely inevitabilities: either alleged war criminals will face torture or death, or they will face nothing and walk away, scot-free. I would say that is the case even if it is just over the border into the United States. When they go back to the States, or even when we deport them back to their home country, they exit the plane and walk away scot-free. In neither instance, be they tortured or walking scot-free, is justice furthered.

It is crucial that we now begin to live up to what is a legal obligation in a number of international instruments - now most particularly the new treaty dealing with the International Criminal Court - to ensure that people against whom those kinds of serious allegations have been made do face justice. As you say, it can be at one of three levels. If it is possible, the best scenario is that it happened in the home country. If a fair trial is possible, if torture and other serious human rights violations are not to be the order of the day, that is where it should happen. If not, it should happen before an international tribunal, or in Canada, or some other country that is prepared to see justice done.

The Chairman: The dilemma has been that there must be a warrant of some sort, whether it be the Rwandan or the Bosnian tribunal and the International Criminal Court has not clicked in yet. The dilemma is that they may be suspects but not suspects in a legal way. That is where that gap comes. While we may feel we have good evidence, there is not a legal machinery in the country of origin, or in Canada, to trap these people.

Mr. Neve: Canadian law does provide for prosecutions of such individuals.

The Chairman: That is in Bill C-19.

Mr. Neve: Even before Bill C-19, the Criminal Code had provisions dealing with prosecution of war criminals. In the past there have been efforts made to use those provisions to deal with World War II era war criminals.

The Chairman: That is my point. We would need to make the choice and we do have the choice here to prosecute them. In some cases we say it is their problem, but there really is not a mechanism on the other side. That is why they go free.

Mr. Neve: Yes, but it is precisely at that time that we need to live up to our obligation, as members of the international community, to ensure that justice is done when someone has committed a crime against humanity. That means all of us, even if none of us, as Canadians, were in any way implicated in what happened in a particular case.

I am confident that with the ratification of the Rome Statute and with the implementation of Bill C-19 - which is meant to do away with some of the legal impediments that arose out of the Supreme Court's decision in Finta a number of years ago that dealt with prosecutions of this nature - we may actually now start to see prosecutions, at least of contemporary or modern war criminals as people often call them. I am not sure that it is a flattering or unflattering term to be a modern war criminal, but that may actually start to happen.

The Chairman: I would perhaps put on the record that we keep talking about this secret committee that meets. I hope that it is on the record that this is not an aspersion on the members of that committee because it is governments that put that committee in place. In terms of this continuing committee, accountability rests with the provinces and the federal government; that is, the political masters who have put that system into place.

Mr. Neve: I agree completely. Over the years I have come to know individually some of the people who have or even continue to be on that committee. They participate on that committee in good faith and are occasionally open to off-the-record discussions about some of these issues. Obviously, that is not a reliable or appropriate way to ensure a broader sense of transparency and accountability.

Senator Finestone: Are the appointments made by the federal, provincial and territorial government? Are they bureaucrats or senior mandarins who sit on this continuing committee? Do we have any idea what its composition is?

The Chairman: We will have a witness who might be able to answer that question, but perhaps our witness knows.

Mr. Neve: I do not know the inner details of it. However, they are bureaucrats.

Senator Finestone: I want to know if there is a statutory structure for this.

Mr. Neve: Not that I know of.

Senator Wilson: You mentioned Article 4 of the American Convention on Human Rights. It is the right-to-life article. My experience is that there is deeply divided opinion about whether we should put in a reservation or what we should do. My question is: How is this decided? What relationship has that decision to the continuing committee or to the political leaders who have not gathered in over 10 years? What is the mechanism for ratification? How is it decided?

Mr. Neve: My understanding is that the question of Canadian ratification of that convention has been discussed in some depth within the continuing committee. This goes back a number of years, not just recently with the renewed attention to Canada and the OAS. It goes back to the time right after Canada joined the OAS. Obviously, a next step would have been for Canada to sign on to the OAS's major human rights treaty. Some of the early political statements indicated that that would happen in short order.

Through its work the committee has come up with its thinking as to the particular reservations that would be necessary, including Article 4, and has, in whatever way that committee reports to its political masters, done so. The sense I have is that now it is time for the political level to take over. This sense comes out of numerous meetings I have had at the provincial and federal level with people who have had involvement in that committee and who have been part of those discussions. However, there is no way for that to happen. In other words, the work has been done. The thinking is there. The recommendations are there. The concerns have been identified. A number of different sources have made recommendations as to the kind of wording for particular reservations that would be necessary. It is at the point now where someone just needs to call the question.

Senator Wilson: There is continuity.

Mr. Neve: The political decision needs to be made as to whether or not Canada is prepared to go ahead with ratification. We felt that the Windsor and Quebec bookends, which were almost a year apart, gave us the best window that we will probably have in a number of years for there to be some political interest in doing so. Obviously, we therefore regret the fact that Quebec has now come and gone. We also regret that there has still not been an initial step, which could be a signature, as a preliminary step towards ratification, or even a statement of intent to sign. There has not been any momentum at all.

Senator Wilson: Did the ratification of the International Criminal Court come through the continuing committee?

Mr. Neve: I do not believe it did.

Senator Wilson: Do all ratifications come through the continuing committee?

Mr. Neve: It depends on whether there are matters in the particular treaty at stake which come within provincial jurisdiction. In the case of the ICC, it did not because it is simply a matter of prosecution. Obviously, the criminal law power is federal.

The American Convention on Human Rights, much like the Universal Declaration on Human Rights, is a broad ranging human rights treaty which deals with arrest, right to counsel and criminal law issues, as well as the right to education and health care.

Senator Wilson: It has to have provincial implications.

Mr. Neve: Yes, it would have many provincial implications, including this controversial one, the right to access to abortion services.

Senator Wilson: My point is there is much public controversy about it, but I do not know if it has ever gotten to the committee.

Senator Finestone: I am interested that you raise that question, Senator Wilson. During the course of the meetings in Costa Rica, I sat in for Canadians on the ratification of this convention. I can tell you that, with me sitting there, there was no way that I would be interested in ratifying that convention, given the particular undertaking in that convention. We used different language and a different approach. We even asked for bracketing, but there was no give on the other side.

I am not interested in seeing us ratify, and that leads to my question: How many of these conventions to which you referred, Mr. Neve, are bracketed? Do have you a list of the bracketing? Do you look at that bracketing and ask why should they sign it? There are certain things in those conventions that do not fit with the polity of Canada.

Canada has a polity that is generally well received across the country. For the most part, the Canadian political family believes in certain values. Some of the values in the documents do not fit us. Why should we sign it if we cannot fit into it and we cannot leave it bracketed? Has Amnesty International looked at that?

I am not your greatest fan, I must tell you. There are certain things that you do that only look at the most negative of the negative. I find that to be, sometimes, quite reprehensible.

Mr. Neve: I am sorry that you feel that way.

Senator Finestone: That is strong language, I know, but that is exactly how I feel. There are times when I would like to shake you.

Mr. Neve: Give us a call. Rather than being shaken, we are more than delighted to have dialogue around those kinds of concerns.

In terms of bracketing, obviously, in the drafting stage, things will often remain bracketed for quite a while. By the time something is officially adopted and then moves on to being something that states can sign onto, there are no brackets left. We may have, occasionally - unless we are talking about different things when you say "bracketing" - different views about which brackets are appropriate, while a draft treaty is going through the many stages of discussion and debate that it goes through. By the time it is adopted, though, some sort of position has been taken on the issues that were at the heart of the bracketing.

Senator Finestone: You put Canada in the bracket with Jamaica, Suriname and the United States on the signing of certain inter-American documents.

Mr. Neve: That was the Convention on Violence Against Women.

Senator Finestone: Do you believe that Canada should be criticized because it has not signed that document? That is the position that you take. Have you given consideration to Canada's position? It is not just the governing party, rather it is the Canadian people. I was a minister when we discussed that. I know that the women's movement, at that time, was not prepared to even consider signing it. Yet you are chastizing Canada for not having signed it. That is what I meant.

You must take into consideration the evolution of a society and whether the convention fits it.

Mr. Neve: I have heard from a number of women's groups in Canada and elsewhere in the Americas, that they would be delighted to see that. There are often differing views. Civil society is by no means a monolithic hole around any of these issues. However, there are a number of women's groups that would like to see Canadian ratification of the Convention on the Violence Against Women.

Senator Finestone: I understand and appreciate the principle and the philosophy and hope that they would want to see this happen.

Mr. Neve: In raising it as an issue, there is a fine edge, sometimes, between criticizing Canada and making a strong recommendation that Canada do something. That is what we are doing in respect to this treaty.

Even Amnesty International has not mounted a long campaign on this particular treaty. However, we are at a point where, after asking five times for Canada to ratify and consistently meeting a brick wall, we are prepared to be openly and publicly critical and denunciatory. Moreover, if Canada is to fully become part of the OAS human rights system, we must be part of the landscape that has committed itself to the same obligations that it wants Brazil, Mexico and Trinidad to uphold. We have got to be there; we have got to sign on. That is what gives us the greater ability to be strong advocates.

Senator Finestone: Of the nine treaties or protocols that we have not signed, do you have an accounting of where you think our mistakes are? Why have we not signed them? Have you had an evaluation done on the reason for the lack of signatures?

Mr. Neve: We have done some evaluations more explicitly than others. We have been talking about the American Convention on Human Rights with the Article 4 challenge. There are some other provisions in that convention that have been highlighted as areas that would need reservations. I have also seen a fairly detailed government response to Canada's failure to ratify the migrant workers' convention. It struck me that Canada's assessment of the convention is that Canadian law already provides higher protections than that treaty provides.

Senator Finestone: That would not be a reason to not sign it.

Mr. Neve: It is something that is highlighted in the government response.

Again, on the migrant workers' front, that is a treaty where we have highlighted that the major reason for Canadian ratification is that it is an international issue; it is not so much about protecting migrant workers in Canada. We are not that concerned about whether Canadian law offers more or less than the treaty.

Rather, we are concerned that worldwide, migrant workers are amongst the most vulnerable. Think of a country like Saudi Arabia, for example, where migrant workers essentially have no rights and they are subjected to widespread abuse and discrimination daily.

We need a strong international system. That convention is not yet in force. We only need four more countries, and Canada would take us 25 per cent of the way to the wall to bring us over that hump.

I have never heard a detailed analysis from government on the other treaties within the OAS system, other than the American Convention on Human Rights. Attention has primarily been focused on the American Convention on Human Rights, which has been the vexing one. It is the grandparent of them all. There has been a general sense that attention will be turned to the other more specific treaties once that treaty has been dealt with.

Senator Finestone: Madam Chair, the reason for that question is that it could give some direction to our research staff. They could examine those nine conventions over the summer, and they could develop some background material for us to study. In that way, we could understand why we have not signed them, if there is a reason or if there is not a reason, and why we cannot move ahead in that regard.

Perhaps that same issue might be presented to Norman Moyer. We could ask that question of him next week. He might be able to give us some helpful answers as to why Canada has not signed.

The Chairman: That is a good suggestion. We will add it to the other pieces of information that we will work on over the summer.

Senator Finestone: Unfortunately, I will not be here next week, so I would be pleased if you could ask that on my behalf.

The Chairman: Also, there is the point that we are either for or against a treaty. When we are deadlocked, sometimes reopening a treaty or amending a treaty is not considered as an option. I was once involved in some fisheries issues, when I suggested that we should talk about opening up and renegotiating the treaty. I was nearly laughed out of the room.

I will put my comment on the record. We need some creative thinking. We were not part of the OAS when much of this went through. We had quite a political discussion about entering the OAS and about one clause in particular in the treaty. Surely, a fresh look at it now, along with some creative thinking of how we can manage more support and adherence, is one of the roles we could play, without getting ourselves needlessly into the old debates that are already well honed.

Senator Finestone: I thank the witness. I am glad that we are not stuck on only the one OAS treaty. I would be most pleased if we were to examine the issue of migrant workers because the migrant workers need attention here in Canada.

The Chairman: Mr. Neve, thank you appearing before the committee today. I have always found Amnesty International to be an organization that can be spoken to openly and with which we can share opinions.

Mr. Neve: Reprehensible though we may be.

Senator Finestone: Would you please change that word?

The Chairman: The good thing is that some of us have worked with Amnesty International and we certainly share that your work is reasoned. Others, perhaps, have had different experiences. This committee will put all opinions on the table and have as forthright a dialogue as possible. Mr. Neve, you have allowed us to do that, and we thank you.

If you have any further suggestions as to where our focus should be and how we can further the work of the human rights field in Canada and internationally please let us know.

On that basis, it is a fact that we have good systems, but how can we improve them and how can we make them more accountable? They may have been innovative 25 years ago, like this continuing committee, but perhaps it is time to give a little advice and a nudge from Parliament to make it more transparent and accountable. Any suggestions on that would be helpful. Thank you again, Mr. Neve.

To other matters, we have a budget with which we must deal. I believe it has been circulated. We have been asked to put in our budget now, under our reference. This is a small item. You will see the amount. We do not anticipate unusual expenditures. If we do come across unusual expenditures, we would rather enter a separate budget item at that time. We want to be seen as a thoughtful and reasoned committee that will not enter large or unusual expenditures. We know the dilemma with which the Board of Internal Economy is faced in regard to many committees. We will move cautiously.

The budget has been prepared by our staff. There being no questions on it, may I have a motion for its adoption?

Senator Finestone: Madam Chair, in a private conversation earlier Ms Bayefsky made a point about which I am concerned. She said that one researcher alone cannot handle the massive amount of information we will receive. With this budget, are we in a position to acquire additional research staff that might have special qualities that would meet our needs?

The Chairman: This is our preliminary study. The head of library services felt its personnel could accommodate us, particularly over the summer, when they will have more time to collate and collect all the material we will want as background.

Research staff at the library comes and goes. There currently is an opening and it is being tailored to our type of need. Rather than contracting for professional staff at this time, to ensure that the leadership on both sides is supportive of us all the way, we should limit our requirements. If we cannot do that, we can go back and ask for specialized services.

This study will be an overview. When we hone in on particular areas there may be a need for specialities that the library will not be able to accommodate. At that time we may have to opt for contractual services.

We are not holding any meetings in camera, and we will videotape as many of our sessions as possible because the public certainly is interested in human rights. It is to be hoped that we will serve an educational function.

I do not think we need a communication strategy for this.

Senator Finestone: We will have to remove the word "reprehensible" or I will need a strategy.

The Chairman: I think you backed off from it very nicely and with great political skill. You did say "on certain issues." I am sure you must have one in mind and not the organization as a whole. That is well noted.

We are required to submit a budget for our needs on this study. I have thought in great detail about the kind of expertise we need. It is to be hoped that we will get that expertise by way of witnesses in this first stage. Later, when it comes to more consultancy and contractual help, that is when the budget goes forward. Until then, I would like to accept the advice of the Library of Parliament that they can support us.

Senator Watt: Will there be a further budget for the later stages?

The Chairman: You will recall that, to get started, we decided to hear witnesses to help us determine what we should study because we all favoured a slightly different approach. We all submitted lists of witnesses who would help us structure the more specific study.

Our term of reference states that the standing committee be "authorized to examine issues relating to human rights, and, inter alia, to review the machinery of government dealing with Canada's international and national human rights obligations," from which I think should come the areas that need to be studied. At that point we may require more expertise, but this is a broad brush to get at the topic.

Senator Wilson: I move the adoption of the budget.

The Chairman: Is it agreed?

Senator Watt: If that is the case, I would go along with what you have put forward here. However, I personally have run into a cement block all along the way. Our system does not have specialized people to deal with issues that I raise from time to time. There will be a requirement for more specialized personnel later, but I will agree to this for this stage.

The Chairman: I think that already today we have zeroed in on two or three very interesting areas. If this continues with future witnesses, we will soon know what our workload is.

Is it agreed that the budget be adopted?

Hon. Senators: Agreed.

The Chairman: Carried.

The committee adjourned.

---